Musso v. OTR Media Group, Inc.

2024 NY Slip Op 31218(U)

• Court: New York Supreme Court, Kings County
• Decided: April 9, 2024
• Docket: Index No. 503827/2019
• Status: Unpublished

Opinion

Musso v OTR Media Group, Inc. 2024 NY Slip Op 31218(U) April 9, 2024 Supreme Court, Kings County Docket Number: Index No. 523025/2018 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 04/09/2024 02:21 PM INDEX NO. 523025/2018 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 04/09/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY QF KINGS : CIVIL TERM: COMMERCIAL 8 --- - -. - - -----~--------- -------------- X ROBERT J. MUSSO, Chapter 7 Trustee of th-e Estate of Ladder 3 Corp. Plaintiff, Decision and order

- against -- Index No. 523025/2018

OTR MEDIA GROUP, INC., AHARON NOE a/k/a ARI NOE, SARAH NOE, ZYSHE NOE, MOSHE MINZ, C ·& M CAPITAL GROUP, LLC. , GUARDIAN LIFE INSU_RANCE COMPANY OF AMERICA, UNITED STATES LIFE INSURANCE COMPANY, ING., THE CITY OF NEW YORK, GREENFIELD CUSTOM BUILDERS, INC., PARK NATIONAL CAPITAL FUNDING, LLC.; WHOOP! U . S .1-\. , I NC. , STERLING CATERERS, INC. , DEAL BUSTER, INC., BLIZZARD COOLING, INC., AND OTR330 BRUCKNER, LLC., Defendants, April 9 1 2024 - . - - ------- -------------~--- ---- ----x GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Plaintiff,

-against- Index No. 5104Bl/2021

OTR MEDIA GROUP, INC., AHARON NOE a/k/a ARI NbE, and ROBERT J. MUSSO, Chapter 7 Trustee of the Estate of Ladder 3 Corp. Defendant, - - - - - - - - ------- ---- ------- ------ - -------- - - - - - - -X PRESENT: HON. LEON RUCHELSMAN Motion Seq. #11 & #12

The defendants OTR and Noe move seeking to renew and/or

reargue a decision and order dated August 21, 2023 which struck

the answer of the defendants for their failure to. engage. in

discovery. The plaintiff has opposed ±:he m:_otion~. Papers were

submi_tted l:iy the parties and after reviewing all the arguments

this coµ.it now make_s the following determination.

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As recorded in prior orders, in 2017 the plaintiff obtained

a judgement against defendant OTR Media Group Inc., in the amount

of $287,500 in a Chapter 7 proceeding in the United States

Bankruptcy court. That judgement was based upon OTR' s breach of

a stipulation of settlement ~xecute

contract claims that took place . in 2010. . This c~~~ent lawsuit

alleges violations of the debtor-creditor law asserting that

fraudulent conveyances were made by the individual defendants

leaving OTR insolvent.

In a decision and order datecl. February 6, 2(120 the court

ordered the defendant to provide discovery requested within 45

days. The plaintiff has moved arguing the defendant has failed

to comply with discovery for the ensuing three years. The

defendant Aharon Noe has provided an aff.idav:i.t wherein he states

that ''I have been waiting f.or the opportunity to fulfil the

discovery demands including attending a deposition by Plaintiff,

so I can effecti.vely move for summary judgment'' (see, Affidavit

of Aharon Noe, '.lI 10 [NYSCEF Doc. No. 141]). However, on

September 12, 2019 the plaintiff served discovery demands upon

the defendant (see, Plaj.ntiff' s First Notice for Discovery and

Inspection [N~SCEF Oo~. No~ S~])i on October 2., 2019· the court

issue.ct ar:i, order: :CE;!quiring the defendant to respond tq the

pl~iptiff'~ d~~and~ withiti thirty days (NYSCEF Doc. No~ 37). A

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good faith letter was served and when that yielded no discovery a

motion seeking to strike the answer was filed •. That motion

resulted in the above noted decision which, aga:in, required the

defendant to comply with the discovery demands within_ forty-five

days. A second good faith letter was served on July 29, 2020

informing the defendant that no discovery had yet been provided

(NYSCEF Doc. No. 87) . A second motion to strike the answer for

the failure to provide any discovery and: a third motion to strike

for the failure to provide any discovery were both filed. In an

order dated August 23, 2023 the court. concluded that the

defendants had failed to provide discovery- and thus the answer

was struck. The defendants now seek to renew and reargue that

det ertninati on . Es seriti a 11 y, the mot i oh to renew really requests

additional time, and one last and final opportunity to engage in

discovery. The motion to reargue asserts, likewise, the court

should afford the defendants additional time in which to comply

with discovery.

Conclusions nf Law

CPLR §2221 allows for "a motion for leave to reargue (which)

may be granted on. a showing that the court overlooked or

misapprehended the facts or the law'' (CPLR 2221) . Furthermore,

CPLR §2221 ''allows that a motion for renewal, on the other hand,

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is appropri-ate when there are new facts not previously known or

offered, or there has been a change or clarification in the law

that will affect the court's prior decisionu (id) • It is true

that generally r a motion to renew rrtust contain evidence that existed a:t the time the original motion was filed but was unknown

to the moving party (Brooklyn Welding Corp.; v. Chin, 236 AD2d

392, 653 NYS2d 631 [2d Dept., 1997]). However, that rule has

been defineq as 'flexible' and a party may file a motion to renew

even if the evidence was known at the time of the original motion

provided the party offers a reasonable explanation why the

additional facts were not included within the original motion

(Progressive Northeastern Insurance Company v. Frenkel, 8 AD3d

390, 777 NYS2d 652 [2d Dept., 2004]). However, as the court held

recently in Wells Fargo Bank N .A., v. Mone, 185 AD3d 626, 127

NYS3d 488 [2d Dept., 2020] "the Supreme Court lacks discretion to

grant renewal where the moving party omits a reasonable

justification fb:r failing to present the new £acts on the.

original motion ... the court should have denied the plaintiff's

motion for leave to renew .•. " ( Id) .

In any event, .a motion to ·re,;:1.rgue ot: to renew are not

avenue ..s to give an uns11ccessfµl party the opportu:rti ty to rea:rque

points all;'.eady ma.de and rej ec:ted by the court (Ippolito v.

Westland S. Shor.e Mall, LLP, 14 Mis.c3d 1220 (A), 2007 WL 1719i2

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(Supreme Court, Suffolk County 2007], citing Williams P. Pahl

Equip. Corp. v Kassis, 182 AD2d 22, 588 NYS2d 8 [lslt Dept.,

1992]) . Fµrther, where a party fails to demonstrate that the

Court misapprehended any of the relevant f 0 cts or misapplied any

controlling principle of law, a motion to reargue must be denied

Matter of Mattie M. v. Administration for ,Children's Services, 48

AD3d 392, 851 NYS2d 236 [2d Dept., 2008], McNamara v. Rockland

County Patrolmen' s Benevolent Association, Inc., 302 AD2d 435,

754 NYS2d 900 [2d Dept., 2003}).

In this case the defendants have not pointed to any mistake

or misapprehension of law or fact that was made by the court. To

the extent the defendants argue the court should not have granted

any discovery sanction and should have afforded the defendants

more time to engage in ctiscovery, no such mistake of law has beeri

presented. The court already rejected the def.endants request for

additional time·. A reques.t to once again consider whether the

defendants can be afforded more time is not a proper basis upon

which to seek reargutnent or renewal. Indeed, the most effective

method of seeking a denial of any sanction would have been to

promptly en.gage in some discovery thereby confirming such good

faith. The- defendant's affidavits fail to present 9 ny leg;:3.l or

factual basis u.pbn whibh to grant any reargument or renewal. The

failure to ehgag:e in any discov,ery and the. failure, op these

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motions, to present any ha,sis for r12consideration in any m9 nner

demands a denial of the motions.

Therefore, based on the foregoing, t::he m0,tions seeking

renewal and reargument are denied.

So ordered.

ENTER:

DATED: April 9, 2024 Brooklyn N.Y. Hon. Leo JSC /

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